BREAKING: CJEU in Filmspeler rules that the sale of a multimedia player is a ‘communication to the public’

Did you think that the
story with copyright, linking, and the right of communication to the public was
over?

Of course not.

Today the Court of Justice
of the European Union (CJEU) issued its long-awaited [even more keenly awaited is however the forthcoming ruling in Ziggo,
aka The Pirate Bay case, here] decision in Filmpeler, C-527/15.

Background

As readers will remember,
this reference for a preliminary ruling had arisen
in the context of litigation between Dutch anti-piracy organization Stichting Brein and Jack Frederik
Wullems over the sale, by the latter and through - among other things - his
site www.filmspeler.nl, of various models of a multimedia player under the
name ‘filmspeler’.

Filmspeler
is a player for connecting a source of image and/or sound signals to a
television screen. If the multimedia player is connected to the internet, on
the one hand, and to a user’s screen (for example, a television screen), on the
other, the user is able to stream the image and the sound from a web portal or
website.

Among
other things, Wullems installed add-ons [over which he had no influence] containing hyperlinks
which, if clicked, would redirect the user to streaming websites, controlled by
third parties, on which films, television series and (live) sporting events
could be enjoyed free of charge, with or without the authorisation of relevant
rightholders.

Stichting
Brein sued Wullems for copyright infringement before the District Court of
Central Netherlands, claiming that through the sale of the
Filmspeler player, Wullems was carrying out a ‘communication to the
public’ contrary to Dutch copyright law.

The District Court held the
view that the relevant Dutch provisions should be interpreted in light of
Article 3 of the InfoSoc Directive but considered that:

(1) CJEU case law
existing at that time[notably Svensson and BestWater] would
not provide criteria sufficient for
reaching a decision in this case; and

(2) it was
unclear whether the defence for temporary copies, pursuant to the Dutch
transposition of Article 5(1) of the InfoSoc Directive, would be applicable to
relevant streaming activities.

The
District Court decided therefore to stay the proceedings and seek guidance from
the CJEU as to the following:

‘1) Must
Article 3(1) of the [InfoSoc] Directive be interpreted as meaning that
there is “a communication to the public” within the meaning of that provision,
when someone sells a product (mediaplayer) in which he has installed add-ons
containing hyperlinks to websites on which copyright-protected works, such as
films, series and live broadcasts are made directly accessible, without the
authorisation of the right holders?

2) Does
it make any difference:

- whether
the copyright-protected works as a whole have not previously been published on
the internet or have been published only through subscriptions with the
authorisation of the right holder?

- whether
the add-ons containing hyperlinks to websites on which copyright-protected
works are made directly accessible without the authorisation of the right
holders are freely available and can also be installed in the mediaplayer by
the users themselves?

- whether
the websites and thus the copyright-protected works made accessible
thereon — without the authorisation of the right holders — can also
be accessed by the public without the mediaplayer?

3) Should
Article 5 of the [InfoSoc] Directive (Directive 2001/29/EC) be interpreted
as meaning that there is no “lawful use” within the meaning of
Article 5(1)(b) of that Directive if a temporary reproduction is made by
an end user during the streaming of a copyright-protected work from a
third-party website where that copyright-protected work is offered without the
authorisation of the right holder(s)?

4) If
the answer to the third question is in the negative, is the making of a
temporary reproduction by an end user during the streaming of a
copyright-protected work from a website where that copyright-protected work is
offered without the authorisation of the right holder(s) then contrary to the
“three-step test” referred to in Article 5(5) of the [InfoSoc] Directive
(Directive 2001/29/EC)?’

Today's decision

At a first glance it would
appear that the CJEU substantially followed the Opinion of Advocate General (AG) Manuel Campos Sánchez-Bordona [here], who proposed a broad(er) interpretation of the right of
communication to the public and, with it, a broader reading of what amounts to
an 'indispensable intervention'.

The CJEU
decision is not yet available on the Curia website, but according to the press release:

"In its
judgment today, the Court of Justice holds that the sale of a multimedia
player, such as the one in question, is a ‘communication to the public’, within
the meaning of the directive.

The Court
recalls, in that regard [and
unsurprisingly], its case-law according to which the
aim of the directive is to establish a high level of protection for authors.
The concept of ‘communication to the public’ must therefore be interpreted
broadly. In addition, the Court has already held that the availability, on a
website, of clickable links to protected works published without any access
restrictions on another website offers users of the first website direct access
to those works. That is also the case in respect of a sale of the
multimedia player in question.

In the same
way, Mr Wullems, in full knowledge of the consequences of his conduct,
preinstalls, on the multimedia player add-ons that make it possible to have
access to protected works and to watch those works on a television screen. Such
actions are not to be confused with the mere provision of physical facilities,
referred to in the directive. In that regard, it is clear from the observations
submitted to the Court that streaming websites are not readily identifiable by
the public and the majority of them change frequently.

The Court
also observes that, according to the referring court, the multimedia player has
been purchased by a fairly large number of people. Furthermore, the
communication at issue covers all persons who could potentially acquire that
media player and have an internet connection. Thus, that communication is aimed
at an indeterminate number of potential recipients and involves a large number
of persons. In addition, the provision of the multimedia player is made with a
view to making a profit [clearly
consideration of the defendant's profit-making intention was due to become
central, especially after GS Media], the
price for the multimedia player being paid in particular to obtain direct access
to protected works available on streaming websites without the consent of the
copyright holders.

The Court
also finds that temporary acts of reproduction, on that multimedia player, of a
copyright protected work obtained by streaming on a website belonging to a
third party offering that work without the consent of the copyright holder,
cannot be exempted from the right of reproduction [within Article 5(1)].

Under the
directive, an act of reproduction is only exempt from the right of
reproduction if it satisfies five conditions, namely (1) the act is temporary,
(2) it is transient or incidental, (3) it is an integral and technical part of
a technological process, (4) the sole purpose of that process is to enable a
transmission in a network between third parties by an intermediary or a lawful
use of a work or subject matter, and (5) that act does not have any independent
economic significance. Those conditions are cumulative in the sense that
non-compliance with one of them will lead to the act of reproduction not being
exempted. Furthermore, the exemption is to be applied only in certain special
cases which do not impair the normal exploitation of the work or other subject
matter and do not unreasonably prejudice the legitimate interests of the right
holder.

In the
present case and having regard, in particular, to the content of the
advertising of the multimedia player and to the fact that the main attraction
of that player for potential purchasers is the pre-installation of the add-ons
concerned, the Court finds that the purchaser of such a player accesses a free
and unauthorised offer of protected works deliberately and in full knowledge of
the circumstances.

Furthermore,
acts of temporary reproduction, on the multimedia player in question, of copyright-protected
works adversely affects the normal exploitation of those works and causes
unreasonable prejudice to the legitimate interests of the copyright holders
because it usually results in a diminution of the lawful transactions relating
to those protected works."

*Who* makes acts of communication to the public?

Flash comment

A more detailed analysis will be
provided as soon as the judgment becomes available.

In the meantime, I can just
say that this judgment is good news for rightholders, including those who are
advocating the introduction of the 'value gap' provision in Article 13 of the draft directive on copyright in the Digital Single Market.
The reason is that with this decision the CJEU appears to have relaxed the
notion of 'indispensable intervention' and potentially paved the way to a broadening of the types of subjects that might be regarded as primarily responsible
for acts of communication to the public.

In this article I wrote on GS Media I suggested in
fact that, should the CJEU follows the AGs in both Filmspeler and Ziggo,
the consequence indicated above might naturally follow.

In this sense, the concept of
‘communication to the public’ has been undergoing an evolution and the frontier
Filmspeler and Ziggo represent is that of determining not just what amounts
to an act of communication to the public, but also who makes
an act of communication to the public.

Stay tuned for a more detailed analysis![UPDATE at 11:45 am: the text of the judgment is now available here]

BREAKING: CJEU in Filmspeler rules that the sale of a multimedia player is a ‘communication to the public’
Reviewed by Eleonora Rosati
on
Wednesday, April 26, 2017
Rating: 5

1 comment:

The headline is great if a little misleading. Shouldn't it read "CJEU holds that a device which enables the user to access web servers from which unauthorised content can be streamed (the enabling facility) is a device which enables communication to the public of that unauthorised content and as such its sale is to be prohibited. If, on the other hand the enabling facility is absent then there is no question of communication to the public."

Having said that I read the piece (which was great) and was moved to do so by the headline - so maybe don't change it.